Historical Concerns with H.R. 620, the ADA Education and Reform Act of 2017

Northeast ADA Center Staff April 26, 2020

My friend and colleague Jim DeJong was part of an email chain in which we were discussing the ADA Education and Reform Act. He told a story of the “making of” Title III of the ADA. I asked him to write this for us so that others could understand the backdrop for Title III of the ADA and the true impact of the proposed law. Jim is in an excellent position to serve as a historian on this issue as he served on the US Congressional Task Force on the Rights and Empowerment of Persons with Disabilities that worked on the ADA. The ADA Centers (which both Jim and I represent) cannot lobby. Our role is to provide education. We offer the information below in that spirit. —Wendy Strobel Gower

The Americans with Disabilities Act is a critical piece of legislation that ensures that people with disabilities have equal access to jobs, to their communities and to state and local government. The disability community worked long and hard to see this anti-discrimination law and its predecessors passed. The law was drafted and revised many times. When it was passed, it represented a number of compromises with the parties impacted by the law.

The fact that many organizations, including those representing the business community had a voice in the law is part of what is frustrating about the ADA Education and Reform Act of 2017. Many who understand the history of the ADA, and the work that went into its final form are understandably frustrated by this reactionary legislation. The ADA Education and Reform Act, which has been introduced into the U.S. Congress, is unnecessary. It is an overreaction to the actions of a few while placing in peril the rights of accessibility to places of public accommodation for persons with disabilities and their families. The bill ignores the past consensus efforts of disability advocates, policy makers and the business community.

As the ADA was being drafted, the National Federation of Business (NFIB) and the US Chamber of Commerce representatives met with disability leaders and congressional staff to carefully construct the ADA to not harm American business while providing access and opportunity to places of public accommodation and businesses for millions of Americans with disabilities and their families. This collaborative work happened in 1989. The disability community never intended nor wished to close or harm our places of commerce and public accommodation, as we need vibrant businesses to conduct our daily life activities and to participate in the economy of our country. But we do believe that we should have access to local business and an opportunity to spend our money just as anyone else does. The ADA represents a compromise between the interest of the disability community and the business community. All parties agreed that the final law contained extremely reasonable regulations and language. Remember, when the ADA was passed, there were only a handful of dissenting votes in Congress.

During the discussions between business, congressional and disability leaders the three main points of concern expressed and addressed as Title III of the ADA was constructed were:

1) Existing physical structures and the potential difficulty in making such facilities wholly accessible

2) The economic standing of a particular business that may not be able to afford making any structural changes

3) The need for available assistance to businesses and entities in understanding the new requirements and regulations to assist successful implementation

The parties agreed that the language in Title III of the ADA sufficiently addressed these concerns. Title III of the ADA incorporates language that states existing businesses are only required to provide access when doing so is readily achievable, meaning it is technically feasible to alter the physical structure and that those alterations are affordable. A business was not and still is not required to make its facility 100% accessible in a single effort but was and is allowed time to implement the changes as they remodel or are able to afford to do so. It is a win-win solution for all. As the business becomes more accessible, customer access increases and the opportunity for profit increases as the disability community gains access to goods and services. If a business cannot meet the aforementioned thresholds of compliance it must offer its goods in an alternative manner such as curbside service or delivery----not a new concept and obviously an economic growth concept being utilized by more and more companies in America. Sweetening the incentive for compliance with the ADA, the IRS offers tax deductions and credits for compliance efforts.

In order to ensure that business didn’t have to go it alone in understanding the regulations laid out in Title III of the ADA, federal agencies were and are mandated to provide assistance to businesses, entities and individuals about the law and its regulations. In addition to this direct assistance from federal agencies, the law established a regional network of technical assistance centers to support implementation of the ADA.  The ADA National Network provides technical assistance, training, and dissemination activities to businesses, both large and small, to assist their understanding and successful implementation of the ADA. In existence now for over 25 years, the regional ADA Centers, collectively known as the ADA National Network, have assisted millions of businesses, both small and large, in doing precisely what the ADA was intended to do: provide accessible businesses to citizens with disabilities and their families. To my knowledge, none of the frivolous lawsuits occurred at a business receiving services from the ADA National Network. We are not an enforcement agency, rather we exist for the sole purpose of education and training around the requirements of the law. The ADA Centers and our relationships with business is a win –win for America and our economy. Businesses have access to more customers and people with disabilities and their families have opportunity and participation in the commerce of our society.

The proposed ADA Education and Reform Act essentially punishes businesses and entities who have complied with the law while rewarding competing businesses who chose to ignore or dismiss a federal civil rights law. This does not create a “level playing field” as the law was intended to do (The level playing field statement was articulated by President George Bush Sr. when he signed the ADA into law nearly 27 year ago). The proposed law unfairly rewards businesses who either have violated the law for decades. These businesses have failed to take advantage of the assistance to them at no charge. They chose to gamble that no one would ever notice their violations.

It is important to note that the ADA is not the only set of regulations or codes that require access for people with disabilities. The International Building Code (IBC) is utilized in most of America (about 85% of states and communities) also lays out accessibility requirements for communities. Local officials should have been informing and enforcing this building code when issuing permits for construction and operational licensing.

Finally, we must address the situation of concerns about frivolous lawsuits or serial litigants. The vast majority of ADA attorneys and plaintiffs who file claims around access issues are seeking solutions to fix real issues of access. For the rare few who may file fraudulent claims or engage in unscrupulous practices, courts and state bar associations already have extensive power to deal with any frivolous litigants or their attorneys. We should use those existing legal mechanisms when needed, rather than denying the civil rights established by the ADA. Money damages are not allowed for private plaintiffs under Title III of the ADA, which applies to privately operate public accommodations, commercial facilities, and private entities offering certain examinations and courses.

H.R. 620, the ADA Education and Reform Act of 2017, is unnecessary and it is punitive to law abiding businesses. Further, it results in denying the civil rights of citizens with disabilities and their families. It is economically unwise for our economy when one considers the needs of the growing aging population of our country and the spending power of persons with disabilities families.

I write this summary as a person with a disability, a family member of a person with a disability, a father, a husband, a small businessman, the Executive Director of the Great Plains ADA Center and former member of the U.S Congressional Task Force on the Rights and Empowerment of Persons with Disabilities (the ADA combine) and for the millions of people unable to do so themselves, or lacking the history of this situation to do so.

I ask you to dismiss this bill so we may all concentrate on fixing access to all aspects of American society that need our undivided and unified attentions.

Respectfully and adamantly submitted by,

James de Jong P.I., E.D.

GREAT Plains ADA Center

University of Missouri-Columbia